Clay v. San Diego Police Department

• Court: District Court, S.D. California
• Decided: May 4, 2023
• Docket: 3:23-cv-00360
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 KENNETH WAYNE CLAY, Case No.: 3:23-cv-00360-JAH-WVG Inmate #1225729, 11 ORDER: Plaintiff, 12 vs. (1) GRANTING MOTION TO 13 PROCEED IN FORMA PAUPERIS

14 [ECF No. 2]; SAN DIEGO POLICE DEPARTMENT;

15 EL CAJON POLICE DEPARTMENT; (2) DISMISSING COMPLAINT STATE OF CALIFORNIA; EDWIN C. 16 PURSUANT TO 28 U.S.C. MILLER; PAUL J. PFINGST, § 1915(e)(2)(B) AND § 1915A(b); and 17 Defendants. 18 (2) DENYING MOTION TO APPOINT COUNSEL [ECF No. 4] 19

20 21 Kenneth Wayne Clay (“Plaintiff” or “Clay”), currently incarcerated at the Riverbend 22 Correctional Facility in Milledgeville, Georgia, is proceeding pro se with this civil rights 23 action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Clay has also filed a Motion 24 to Proceed to Proceed In Forma Pauperis (“IFP”), and a Motion to Appoint Counsel. See 25 ECF Nos. 2, 4. Clay claims the Defendants violated his due process and Eighth Amendment 26 rights. Compl., ECF No. 1 at 3. 27 / / / 28 / / / 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 577 U.S. at 85. 24 25 1 In civil actions except for applications for a writ of habeas corpus, civil litigants bringing 26 suit must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. 27 § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The $52 administrative fee does not apply to persons granted leave to 28 1 Clay has provided a certified trust account statement in support of his IFP Motion 2 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. See ECF No. 2 at 8–10; 3 ECF No. 3; Andrews, 398 F.3d at 1119. That document shows Clay has an available 4 balance of $0.00. See ECF No. 2 at 8–10; ECF No. 3. Therefore, the Court GRANTS 5 Clay’s Motion to Proceed IFP (ECF No. 2), declines to exact the initial filing fee because 6 his trust account statement indicates he may have “no means to pay it,” Bruce, 577 U.S. at 7 85, and directs the Commissioner of the Georgia Department of Corrections, or his 8 designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. 9 § 1914 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) 10 and forward them to the Clerk of the Court for the United States District Court for the 11 Southern District of California. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 12 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 13 criminal judgment for the reason that the prisoner has no assets and no means by which to 14 pay the initial partial filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 15 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 16 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 17 ordered”). 18 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 19 A. Legal Standard 20 Because Clay is a prisoner, his Complaint requires a pre-answer screening pursuant 21 to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court must sua 22 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 23 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 24 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 25 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 26 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous 27 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 28 903, 920 n.1 (9th Cir. 2014) (citation omitted). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 13 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 15 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 16 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 17 “Section 1983 creates a private right of action against individuals who, acting under 18 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 19 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 20 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 21 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations 22 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 23 secured by the Constitution and laws of the United States, and (2) that the deprivation was 24 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 25 F.3d 1128, 1138 (9th Cir. 2012). 26 B. Discussion 27 In his Complaint, Clay alleges his due process and Eighth Amendment rights were 28 violated by the Defendants because they “had no venue or jurisdiction to arrest me[,] [n]or 1 did they have an investigation on residing address and no parties showed up in court.” 2 Compl., ECF No. 1 at 3. When a specific constitutional Amendment “provides an explicit 3 textual source of constitutional protection against a particular sort of government behavior, 4 that Amendment . . . must be the guide for analyzing these claims.” Albright v. Oliver, 510 5 U.S. 266, 273 (1994) (plurality) (quotation marks omitted). The Fourth Amendment 6 provides, in pertinent part, as follows: “The right of the people . . . against unreasonable 7 searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable 8 cause, supported by Oath or affirmation, and particularly describing the place to be 9 searched, and the persons or things to be seized.” U.S. Const., Amend. IV. Because Clay 10 alleges he was unlawfully arrested, his claims are most properly interpreted under the 11 Fourth Amendment. 12 It is not clear from the Complaint whether Clay is in pre-trial custody pursuant to 13 the allegations contained in the Complaint or has been convicted of the crimes for which 14 he alleges he was wrongfully arrested. In either case, however, his Complaint must be 15 dismissed. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court concluded that 16 a § 1983 claim which “necessarily implies the invalidity” of an underlying criminal 17 judgment is not cognizable until the criminal judgment has been reversed, set aside, 18 expunged, invalidated, or called into question on federal habeas review. Id. at 486-87; see 19 also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying Heck’s favorable 20 termination rule to Bivens actions). If Clay has been convicted, his § 1983 claims would be 21 barred by Heck to the extent they may “necessarily imply the invalidity” of his criminal 22 judgment. See Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (holding wrongful 23 arrest, malicious prosecution, and conspiracy to bring false charges barred by Heck); 24 Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding false arrest 25 and imprisonment claims were Heck-barred until conviction is invalidated). 26 If he has not yet been convicted, it appears this Court may be barred from 27 consideration of his claims by the abstention doctrine announced in Younger v. Harris, 401 28 U.S. 37 (1971). Under Younger, federal courts may not interfere with ongoing state 1 criminal proceedings absent extraordinary circumstances. Id. at 45–46; see Middlesex 2 County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (Younger 3 “espouse[d] a strong federal policy against federal-court interference with pending state 4 judicial proceedings.”) These concerns are particularly important in the habeas context 5 where a state prisoner’s conviction may be reversed on appeal, thereby rendering the 6 federal issue moot. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir. 1983). Absent 7 extraordinary circumstances, abstention under Younger is required when: (1) state judicial 8 proceedings are ongoing; (2) the state proceedings involve important state interests; and 9 (3) the state proceedings afford an adequate opportunity to raise the federal issue. Columbia 10 Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001). All three of 11 Younger’s requirements are met here, and Clay has not demonstrated that extraordinary 12 circumstances exist which would relieve this Court of its obligation to abstain from 13 interfering with ongoing state criminal proceedings. Accordingly, if Clay has not yet been 14 convicted, the Court must abstain from interfering in his ongoing state criminal case. 15 Younger, 401 U.S. at 45–46; Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that if 16 Younger abstention applies, a court may not retain jurisdiction but should dismiss the 17 action.) 18 In any event, Clay has not stated a plausible Fourth Amendment wrongful arrest 19 claim. The Fourth Amendment requires that an officer have probable cause to arrest a 20 person without a warrant. Michigan v. Summers, 452 U.S. 692, 700 (1981). “Probable 21 cause exists when officers have knowledge or reasonably trustworthy information 22 sufficient to lead a person of reasonable caution to believe that an offense has been or is 23 being committed by the person being arrested.” Id. (citing Beck v. Ohio, 379 U.S. 89, 91 24 (1964)). Clay has not specified whether his arrest was warrantless. Compl., ECF No. 1. 25 Nor has he has explained what any Defendant did or did not do which plausibly shows his 26 arrest was without a warrant or probable cause. He simply states “they had no venue or 27 jurisdiction to arrest [him],” had no “investigation on residing address,” and “no parties 28 1 showed up in court.” Id. That is not sufficient to state a plausible § 1983 claim. Iqbal, 556 2 U.S. at 678. 3 III. Motion for Appointment of Counsel [ECF No. 4] 4 Clay has asked this Court to appoint counsel. See Mot. to Appt. Counsel, ECF No. 5 4. There is no constitutional right to counsel in a civil case and the decision to appoint 6 counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and 7 is granted only in exception circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 8 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (noting 9 that only “exceptional circumstances” support such a discretionary appointment). 10 Exceptional circumstances exist where there is cumulative showing of both a likelihood of 11 success on the merits and an inability of the pro se litigant to articulate his claims in light 12 of their legal complexity. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 13 Clay’s Complaint demonstrates he is capable of legibly articulating the facts and 14 circumstances relevant to his claims, which are not complex. Because Defendants have yet 15 to respond to the Complaint, a determination regarding the likelihood of success on the 16 merits or Clay’s ability to prosecute this matter is premature. Indeed, the Court has 17 determined at this juncture that his he has not stated a plausible § 1983 claim against any 18 Defendant. Exceptional circumstances warranting appointment of counsel do not exist at 19 this time. See Agyeman, 390 F.3d at 1103. Thus, the Court DENIES Clay’s request for 20 appointment of counsel without prejudice to him renewing the request if he wishes to do 21 so at a later stage of these proceedings. 22 IV. Conclusion and Order 23 Based on the foregoing, the Court: 24 1) DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 4); 25 2) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2); 26 3) ORDERS the Commissioner of the Georgia Department of Corrections, or 27 his designee, to collect from Plaintiff’s prison trust account the $350 filing fee owed in this 28 case by collecting monthly payments from the account in an amount equal to twenty 1 percent (20%) of the preceding month’s income and forward payments to the Clerk of the 2 Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. 3 § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME 4 AND NUMBER ASSIGNED TO HIS ACTION; 5 4) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 6 on Tyrone Oliver, Commissioner of the Georgia Department of Corrections, 300 Patrol 7 Road, Forsyth, Georgia 31029; 8 5) DISMISSES Plaintiff’s Complaint as to all Defendants sua sponte for failing 9 to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 10 and § 1915A(b)(1). 11 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 12 which to file an Amended Complaint correcting all the deficiencies of pleading identified 13 by the Court in this Order. Plaintiff is advised his Amended Complaint must be complete 14 in itself without reference to his original pleading. Defendants not named and any claims 15 not re-alleged in the Amended Complaint will be considered waived. See S.D. CAL. 16 CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading 17 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 18 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 19 pleading may be “considered waived if not repled.”). Plaintiff’s Amended Complaint must 20 be entitled as his “First Amended Complaint,” contain S.D. Cal. Civil Case No. 22-cv- 21 01801-BAS-WVG in its caption, and comply both with Fed. R. Civ. P. 8 and with S.D. 22 Cal. CivLR 8.2.a. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 In order to assist Plaintiff in complying with these requirements, the Court further 2 || DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form 3 ||Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use should he choose to 4 || amend. 5 IT IS SO ORDERED. | | M&S 6 || Dated: May 4, 2023 7 HQN. JOHN A. HOUSTON ITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9